Here's The Digital Privacy Battle At The Center Of Obama's Big Trade Deal

By Dana Liebelson and Zach Carter

Senator Ron Wyden, a Democrat from Oregon, speaks during an interview in New York, U.S., on Monday, July 14, 2014. Wyden, a persistent critic of the U.S. National Security Agency, is using his perch as Finance chairman to broaden his attack on the agency's practices. Photographer: Victor J. Blue/Bloomberg via Getty Images

Open Internet advocates are still fighting for key privacy protections in a major trade pact the Obama administration is negotiating with 11 Pacific nations. But as talks over the deal enter their final stages in Hawaii this week, it looks like an uphill battle -- Internet freedom activists appear to be opposing important traditional allies: major tech companies and even Sen. Ron Wyden (D-Ore.).

Wyden's views on privacy issues are especially significant due to his position as the top Democrat on the Senate Finance Committee -- the panel with jurisdiction over Obama's Trans-Pacific Partnership, or TPP. And some of his backers worry that he’s not on their side.

"Wyden is hypocritical," said Jeffrey Chester, executive director of the Center for Digital Democracy, an open Internet advocacy group. "On the one hand he wants to limit government spying on citizens, but he looks the other way when it comes to high-tech companies spying on Americans and global citizens."

Chester and other groups, including the Electronic Frontier Foundation, worry that data flow provisions in the trade agreement will enable big companies to fight and discourage strong privacy rules abroad. Since tech companies hold enormous amounts of information about Internet users, including sensitive personal data like medical information, privacy issues have become a major policy battleground in the tech universe. Major companies, of course, insist they already respect privacy and aren't worried TPP will erode international privacy norms. Specific terms of the trade deal remain secret, however, making it difficult to determine what is actually in the pact.

David Weller, head of global trade policy at Google, acknowledged the concerns at a conference this week in Washington, D.C., telling The Huffington Post that "there has been some concern expressed that addressing cross border data flows ... whether it be TPP or other agreements, is somehow sort of overriding privacy.” But he contended there's a way to balance market openness and regulation “without saying we're going to do cross border data flows and we're going to throw privacy out the window.”

He added that part of the challenge is that the agreement isn’t done yet, and it’s become "a Rorschach test" on "whether you think kind of deep evil is being done or not there behind the shroud of the negotiating room."

But while major U.S. tech firms ally with Internet freedom groups on domestic policy battles like the legislative fight over the Stop Online Piracy Act, they are being criticized by those same groups on TPP.

U.S. tech companies “don’t necessarily always have the greatest privacy policies,” said Maira Sutton, a global policy analyst at the Electronic Frontier Foundation. "Privacy regulations shouldn’t be decided in secret and shouldn’t be dictated by large, multinational tech companies. … It shouldn’t be, oh well, Google and Facebook says it’s good for the Internet so that's what good for everybody.”

Regulations that ensure free data flow can be great for Internet users by allowing U.S.-based tech companies to avoid censorship imposed by other countries. Google, for example, has routinely received takedown notices from countries like Thailand, where Internet users can’t insult the king. Officials from Japan, which is in TPP, also issued almost 20 removal requests to Twitter in the second half of 2014.

Last year, Wyden -- one of the strongest Senate privacy champions -- sent a letter with Sens. Orrin Hatch (R-Utah), John Thune (R-S.D.) and then-Sen. Jay Rockefeller (D-W.Va.) to the Office of the U.S. Trade Representative urging against TPP standards that "prohibit unnecessary limitations on the cross-border transfer, storage and processing of data."

A Wyden aide said the senator’s "big concern here has been ensuring free speech and free flow of ideas online." He wasn’t aware whether Wyden has addressed privacy concerns around data flow issues in the past.

But Sutton fears that tech companies could use potential provisions in TPP to fight stronger data privacy measures in other countries or discourage countries from enacting stricter data protections in the first place. The TPP will be enforced by provisions that allow foreign corporations to challenges the laws and regulations of another nation before an international tribunal staffed by corporate attorneys. Without strong privacy language, TPP could enable an aggressive firm to try to overturn privacy protections it doesn't like as an unfair barrier to trade.

“We wish that Wyden sort of saw those concerns, but many of the senators don't really care about privacy in other countries,” Sutton said. She acknowledged, however, that the senator has “always called out the copyright issues.”

Open Internet advocates also have been struggling with that aspect of the pact, which they worry would essentially export aspects of U.S. law they have long opposed -- concerns backed up by a leaked draft chapter of the agreement. USTR appears to be pushing to impose the most aggressive aspects of American copyright law, including lengthy terms, stiff penalties for violations and enforcement efforts that have long been criticized for stifling free speech. By defining copyrights broadly, digital companies are frequently assailed for operating platforms that allow users to point each other to copyrighted information.

While the U.S. has some of the broadest copyright protections in the world, it also has a very developed system of limitations and exemptions to those rights. Publishers, Hollywood movie studios and major record labels frequently lobby USTR for broader protections, but generally don't seek the corresponding exceptions. USTR has committed to including a set of exemption in TPP, which would make it the first trade pact to include such a provision. But the precise language remains a matter of concern, leading some experts to worry that the deal could help overseas companies challenge American exemptions, like the fair use doctrine, before a tribunal.

USTR was not available to comment for this article, but has repeatedly said it will seek strong intellectual property terms that protect an open Internet.

Nevertheless, a leaked draft of the pact's intellectual property chapter revealed language very similar to the deeply controversial Computer Fraud and Abuse Act -- a broad statute that can be used to penalize innocent activity. Prosecutors famously invoked the CFAA to charge hacktivist Aaron Swartz with multiple felonies for downloading academic journal articles.